Our Most Essential Right? : The Rise and Fall of the 14th Amendment

Implicit in the language of the 14th Amendment is a certain distrust for the states. With the 14th Amendment , the federal government firmly asserted that “No state shall,” in many cases, obstruct certain rights from the hands of the people. 

This was a powerful message, and one that held the potential to change the course of citizens’ rights. For the first time, the federal government claimed citizenship to be of the nation first, and of the state second. Individual states would no longer be able to confine citizens to their state jurisdiction. States would defer to the national government, and citizens would be protected equally…ideally. 

Due to subsequent decisions made by a cautious Court, the 14th Amendment’s scope became increasingly limited to a point where state power again became supreme. 

Context 

Following the 13th Amendment ratified in 1865, the infamous Southern Black Codes   were created by Southern states as a loophole to circumvent emancipation. To counteract this, Congress asserted that there must be federal legislation passed in the form of the 14th Amendment.

Evidently, Congress passed the 14th Amendment in order to protect citizens from their states and for the nation. Through the Black Codes, states proved that they couldn’t fully be trusted to protect the rights of all citizens equally. 

The shifting interpretations of the 14th Amendment, and following legislation 

The Black Codes were only some of the many purposeful obstacles placed in the path of the 14th Amendment’s protections. Subsequent interpretations by the Court perpetuated the states’ push against federal protection in ways that left lasting imprints in the law. 

Through the Slaughterhouse Cases of 1873, justices succeeded in narrowing the scope of the 14th Amendment. This was the first time that the Court clearly outlined that the Privileges and Immunities Clause only protected a narrow set of national rights. More crucially, the Court left it up to the states to decide what these “privileges and immunities” were for the citizens of their state. 

During the Reconstruction Era following the Civil War, Southern Democrats capitalized on the faltering federal government to seize dominance in southern states. Now backed by the Court’s opinion in the Slaughterhouse Cases, Southern Democrats were undeterred by the 14th Amendment in defining the "privileges and immunities,” or lack thereof, for their citizens. Southern Democrats were now empowered to take power and stay in power through Jim Crow Laws, dramatically disenfranchising and discriminating against African Americans once again undermining the original purpose of the 14th amendment. 

Subsequently, terrorist groups such as the Ku Klux Klan rose to notoriety for their extreme violence against African Americans as a way to resist Reconstruction. In the 1873 Colfax Massacre, a group of armed white supremacists killed over a hundred African American men. In response to this, the case was brought to the Court in US v. Cruikshank (1876). Once again, the Court chose to stick to an originalist approach by claiming that the rights involved with this case only applied to the federal government, and not to states or private individuals. 

In terms of the 14th Amendment and the due process and equal protection clauses, the Court affirmed that these only applied to state action and not the actions of individuals. This effectively meant that the federal government could not enforce protection for the African Americans affected by the KKK and other violent white supremacist groups because these aggressors were private individuals who should be dealt with by the state, not the federal government. 

Following the passage of the Civil Rights Act of 1875, several cases rose to the Supreme Court claiming violation of this legislation. This Act worked to strengthen the 13th and 14th Amendments, making racial discrimination in public accommodations illegal. Now, all citizens regardless of race would be “entitled to the full and equal enjoyment” of all public facilities. 

The plaintiffs in the Civil Rights Cases of 1883 considered by the Supreme Court all claimed that a business or transportation facility denied them accommodation due to their status as African Americans. However, the defendants in the cases challenged the constitutionality of the Civil Rights Act of 1875, questioning whether Congress was justified in passing this legislation. Ultimately, the Court again upheld their narrow reading of the 14th Amendment, choosing to turn a blind eye to private businesses discriminating against certain races for the reason that the federal government cannot intervene in actions of private individuals. Not only did this allow states to decide the fate of their citizens in terms of rights, but it also categorized businesses as private individuals, providing the rights of individuals to these businesses at the expense of citizens. Now, the actions of private corporations and businesses were effectively beyond federal regulation, even if those actions were blatantly discriminatory. 

Contemporary interpretations and arising issues

Following FDR’s presidency, the Court began to shift from an ardent protection of economic liberty to a focus on civil rights. In US v. Carolene Products (1938), the idea of levels of scrutiny were first introduced by Justice Harlan Stone in a footnote within the decision. With a growing respect for substantive due process and a protection of individual rights against state actions through the 14th Amendment, the Court began to classify these claims through distinct levels of scrutiny. This was the Court’s attempt to protect individuals from discrimination, with strict scrutiny providing a classification for people being violated on the basis of race or national origin. 

Today, threats to the 14th Amendment and its interpretation still continue to stand in the way of individual rights. President Trump’s Executive Order 14160 claims that children born of parents who are unlawfully or temporarily residing in the US are not entitled to citizenship. This directly contradicts the precedent established in US v. Wong Kim Ark (1898), in which the Court recognized birthright citizenship and validated the children of non-citizens. 

Though primarily pertaining to the Citizenship clause, Trump v. Barbara (2026) addresses several major points of the 14th Amendment. Depriving the children of immigrants of their birthright citizenship would consequently strip them of their right to equal protection and due process. Though the Court is still hearing arguments for this case, it is essential that we establish a precedent protecting birthright citizens from both state and federal governments; all citizens should be guaranteed their 14th Amendment rights, no matter the threats by the state or federal government. 

Consensus

While the 14th Amendment had immense potential to change the scope of rights for a variety of different people in America, it failed to reach its full potential as an arbiter of citizens’ rights due to targeted Court rulings through the years. 

Today, we face similar threats to regress the 14th Amendment protections, but by a different aggressor. The executive branch’s push to limit 14th Amendment rights in ending birthright citizenship has compelled the states to take action for their citizens, with 22 states suing the federal government shortly after President Trump issued EO 14160. With this reversal of roles, we’ve gained a serious threat, but also a new hope. Although the Court has historically diminished the 14th Amendment’s power in favor of states, we now have an opportunity to reclaim these essential rights through a unified assertion of state power for the protection of all citizens.

Source: Dana Verkouteren